Full Judgment Text
2024 INSC 585
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. ……………. OF 2024
(Arising out of SLP(C)Nos.30188-30189/2018)
PREM LAL ANAND & ORS. … APPELLANT (S)
VERSUS
NARENDRA KUMAR & ORS. …RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
Leave Granted.
2. These appeals by special leave are directed against the judgment and order
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dated 26 October, 2017 of the High Court of Judicature at Allahabad in First
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Appeal from Order No.341 of 1997 and dated 13 July, 2018 in Civil Misc. Recall
Application No.360830 of 2017 in First Appeal from Order No.341 of 1997
Signature Not Verified
Digitally signed by
VARSHA MENDIRATTA
Date: 2024.08.07
14:00:21 IST
Reason:
between the self-same parties. The appeal to the High Court was filed by the
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claimants (appellants herein) against Order dated 8 January, 1997 passed by
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M.A.C.T./XIV Additional District Judge, Ghaziabad in Motor Accident Claim
No.570 of 1994.
3. The claimant-appellant No.1 along with his wife aged about 45 years were
travelling by motorcycle and as they were crossing village Mehrauli, on their way
to Noida to visit a friend, they were faced with two rashly and speedily driven
tractors resulting into an accident, with the claimant sustaining several injuries
including a broken jaw and fracture(s) in his leg. Unfortunately, claimant-
appellant’s wife died on the spot, as a result of the impact of the accident.
4. The claimant-appellant and his deceased wife were engaged in business,
jointly earning Rs.5,000/- from their business concern, namely, M/s. Sonali
Fabrics. It was urged that due to the sudden death of the wife of the deceased,
the entire business, which was earning profits, for example, Rs.60,000/- in the
year 1994 and Rs.50,000/- in 1993, the income therefrom was lost.
5. Hence, the claimant filed a claim for Rs.12,00,000/- before the concerned
Motor Accident Claims Tribunal.
6. The Tribunal framed five issues in respect of rash and negligent driving;
claimants being the legal heirs of the deceased wife, the quantum of her earnings;
liability of the insurance company; whether the driver of the offending vehicle
had a valid licence; and lastly what relief, if any.
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7. In regard to contributory negligence, it was held that the claimant and the
respondent both were responsible equally. The claimants were held to be legal
heirs of the deceased. The driver of the offending vehicle had a valid licence.
The final order given by the Tribunal is reproduced hereinbelow :-
“The Motor Accident Claim of Claimants for the compensation of
Rs.12 Lacs is hereby rejected. Claim is decreed against the
Respondents Narendra Kumar, Jagbir and M/s United India Insurance
Co.Ltd. for the compensation of Rs.1,01,250/- with cost. Claim against
the Respondent No.4 Charan Singh is rejected. Claimant shall be
entitled to interest @ 12% per annum on the amount of abovesaid
compensation e.e.f. 9.10.1994. Respondents are directed to deposit the
aforesaid amount in this Court within a period of two months. Failing
which the appropriate action according to Law shall be initiated against
them for the recovery of amount. In case any interim compensation has
already been paid to the Claimants the same shall be adjusted in this
amount.”
8. Seeking enhancement of compensation, the claimant-appellant(s)
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approached the High Court. Vide the impugned order dated 26 October, 2017
the High Court partly allowed the appeal, observing that there is an apparent error
in the Tribunal applying multiplier 9 to calculate the compensation whereas,
accordingly applied the multiplier as 14. The Tribunal was, therefore, directed
to calculate the enhanced compensation, carrying the rate of interest as awarded
by the Tribunal.
9. Subsequently, Civil Misc. Recall Application No.360830 of 2017 was
preferred by the claimant-appellant(s) against the order impugned herein.
However, the same was dismissed. It is against both these orders that the
claimant-appellant(s) have approached this Court.
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10. The primary ground on which compensation truncated, in nature was
awarded to the claimant-appellant(s), was the finding of contributory negligence
returned by the Tribunal. In answering the third issue, the liability of the
insurance company to pay compensation, it was observed that the responsibility
for the accident could be apportioned to both the claimant-appellant(s) and the
respondent at 50% each.
11 . At this stage, it would be appropriate to consider pronouncements of this
Court on contributory negligence.
11.1 In Municipal Corporation of Greater Bombay v. Laxman Iyer &
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Anr . , this Court discussed the concept of negligence and its types, i.e.,
composite and contributory, in the following terms :-
“ 6. …. Negligence is omission of duty caused either by an omission
to do something which a reasonable man guided upon those
considerations, who ordinarily by reason of conduct of human affairs
would do or be obligated to, or by doing something which a prudent
or reasonable man would not do. Negligence does not always mean
absolute carelessness, but want of such a degree of care as is required
in particular circumstances. Negligence is failure to observe, for the
protection of the interests of another person, the degree of care,
precaution and vigilance which the circumstances justly demand,
whereby such other person suffers injury. The idea of negligence and
duty are strictly correlative. Negligence means either subjectively a
careless state of mind, or objectively careless conduct. Negligence is
not an absolute term, but is a relative one; it is rather a comparative
term. No absolute standard can be fixed and no mathematically exact
formula can be laid down by which negligence or lack of it can be
infallibly measured in a given case. What constitutes negligence
varies under different conditions and in determining whether
negligence exists in a particular case, or whether a mere act or course
of conduct amounts to negligence, all the attending and surrounding
facts and circumstances have to be taken into account. It is absence
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(2003) 8 SCC 731
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of care according to circumstances. To determine whether an act
would be or would not be negligent, it is relevant to determine if any
reasonable man would foresee that the act would cause damage or
not. The omission to do what the law obligates or even the failure to
do anything in a manner, mode or method envisaged by law would
equally and per se constitute negligence on the part of such person.
If the answer is in the affirmative, it is a negligent act. Where an
accident is due to negligence of both parties, substantially there
would be contributory negligence and both would be blamed. In a
case of contributory negligence, the crucial question on which
liability depends would be whether either party could, by exercise of
reasonable care, have avoided the consequence of the other's
negligence. … Contributory negligence is applicable solely to the
conduct of a plaintiff. It means that there has been an act or omission
on the part of the plaintiff which has materially contributed to the
damage, the act or omission being of such a nature that it may
properly be described as negligence, although negligence is not
given its usual meaning. …. It is now well settled that in the case of
contributory negligence, courts have the power to apportion the loss
between the parties as seems just and equitable.”
(Emphasis supplied)
11.2 This Court in Pramodkumar Rasikbhai Jhaveri v. Karamasey
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Kunvargi Tak & Ors . observed :
“ 9. Subject to non-requirement of the existence of duty, the question
of contributory negligence is to be decided on the same principle on
which the question of the defendant's negligence is decided. The
standard of a reasonable man is as relevant in the case of a plaintiff's
contributory negligence as in the case of a defendant's negligence.
But the degree of want of care which will constitute contributory
negligence, varies with the circumstances and the factual situation of
the case. The following observation of the High Court of Australia
in Astley v. Austrust Ltd. [(1999) 73 ALJR 403] is worthy of
quoting:
“A finding of contributory negligence turns on a factual
investigation whether the plaintiff contributed to his or her own loss
by failing to take reasonable care of his or her person or property.
What is reasonable care depends on the circumstances of the case. In
many cases, it may be proper for a plaintiff to rely on the defendant
to perform its duty. But there is no absolute rule. The duties and
responsibilities of the defendant are a variable factor in determining
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(2002) 6 SCC 455
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whether contributory negligence exists and, if so, to what degree. In
some cases, the nature of the duty owed may exculpate the plaintiff
from a claim of contributory negligence; in other cases, the nature of
the duty may reduce the plaintiff's share of responsibility for the
damage suffered; and in yet other cases the nature of the duty may
not prevent a finding that the plaintiff failed to take reasonable care
for the safety of his or her person or property. Contributory
negligence focuses on the conduct of the plaintiff. The duty owed by
the defendant, although relevant, is one only of many factors that
must be weighed in determining whether the plaintiff has so
conducted itself that it failed to take reasonable care for the safety of
its person or property.”
(Emphasis supplied)
12. Record reveals that driver of the tractor No.UP 14-A 1933 had maintained
slow speed, prompting the claimant-appellant No.1 to overtake, but, however, the
driver of the another tractor bearing No.UP 14-B 9603 was rash and negligent in
his act, inasmuch as, not only did he overspeed, but also came from the wrong
side, resulting in the collusion.
13. In the attending facts and circumstances, merely because a person was
attempting to overtake a vehicle, cannot be said to be an act of rashness or
negligence with nothing to the contrary suggested from the record. Further, it is
the claimant-appellant(s) who lost a member of their family. Not only was the
claimant-appellant, Prem Lal Anand doing an act which is an everyday
occurrence on the road that is overtaking a vehicle, but resultantly suffered
extensive injuries himself. That apart, it has also been proved that the offending
vehicle was driven rashly and negligently. These two factors taken together lead
us to the conclusion that the finding of contributory negligence against the
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appellant No.1 was erroneous and unjustified. Consequently, compensation
awarded on this count has to be revised.
14. A further contention by the claimant-appellant(s) was the misapplication
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of the multiplier in Sarla Verma v. Delhi Transport Corporation . It is argued
that the multiplier applicable will be 15, in accordance with the Second Schedule
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to the Motor Vehicle Act as on 22 May 2018. The statute as it stands today,
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does not have a Second Schedule, with the same being omitted on 25 February
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2022. The Special Leave Petition in the present matter was filed on 10 October
2018, on which date the Schedule was in force. Therefore, we find force in the
submission of the learned counsel for the claimant-appellant(s)
15. Another aspect to be considered is the grant of future prospects as per
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National Insurance Co. Ltd . v. Pranay Sethi . Para 59.4 thereof provides that if
the deceased was self-employed or on a fixed salary, considering the age of the
deceased, certain percentages as provided have to be added in respect of future
prospects. In the present case, the deceased was between the age of 40 and 50 and
accordingly, 25% addition is to be made, to the established income. The Tribunal
notes the income of the deceased to be Rs.5000/- per month, therefore 25% of
5000 equals Rs.1,250/-. Yearly income as a result would be Rs 6250 x 12 which
equals to Rs.75,000/- per year.
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(2009) 6 SCC 121
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(2017) 16 SCC 680
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16. Compensation as calculated, in accordance with the above discussion
would be 75,000/- (which includes Future Prospects) x 15 (Multiplier) =
Rs. 11,25,000/-.
17. Hence, the claimant would be entitled to a total sum of
Rs.11,25,000/- instead of Rs.1,01,250/- as awarded by the Tribunal, as
compensation.
18. We clarify that the other directions of the Tribunal shall remain undisturbed
except that the rate of interest would be 8% instead of 12%.
19. The Appeals are allowed in aforesaid terms. The impugned Award dated
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8 January, 1997 titled as Prem Lal Anand & Ors . v. Narendra Kumar & Ors.
in Motor Accident Claim No.570 of 1994 stands modified to the aforesaid extent.
Pending applications, if any, are also disposed of.
…………….…………J.
(C.T. RAVIKUMAR )
………………………J.
(SANJAY KAROL)
Dated : August 07, 2024;
Place : New Delhi.
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